Williams v. Millington, 1 H. Bl. 85. — Notes.

not a true position, that two persons cannot bring separate actions for the same cause: the carrier and the owner of goods may each bring actions on a tort; the factor and owner may each have actions on a contract. I am therefore, upon the whole, decidedly of opinion that this action may well be maintained.

GOULD, J., and HEATH, J., were of the same opinion, WILSON, J., doubting whether the plaintiff, though having a special property, had the right to dispose of the absolute property upon which the action for goods sold and delivered was founded.

ENGLISH NOTES.

In the case of Woolf v. Horne (11 May, 1877), 2 Q. B. D. 355, 46 L. J. Q. B. 534, which was an action against the auctioneer for delivery of the goods (MELLOR, J., quoted at length the above judgment of Lord LOUGHBOROUGH, and held (FIELD, J., agreeing with him), that the action was properly brought against the auctioneer.

In the case of Davis v. Artingstall (30 April, 1880), 49 L. J. Ch. 609, goods, the separate property of a married woman, were placed by her husband in a hired warehouse and entrusted to the defendant (an auctioneer) for the purpose of sale. The defendant before the sale received notice on behalf of the wife that the goods were her separate property, and that she would hold the auctioneer responsible. Notwithstanding this notice the defendant sold some of the goods and re-delivered the rest to the husband. He was held liable not only for the net price of the goods sold (which he offered to pay), but for the real value, irrespective of the prices realized at the sale of the whole goods. FRY, J., observed that the question turned upon whether the defendant was in possession, or only authorized to sell. "I feel bound," he said, "by the decision of Williams v. Millington, from which it appears that an auctioneer has not merely the custody but the possession of goods entrusted to him for sale, and there is no difference whether they are on the premises of the owner of the goods, or on his own premises." He then quoted at length from the above judgment of Lord LOUGHBOROUGH; and considered that the defendant, having had the possession, and refused to deliver the goods to the rightful owner after formal notice from the plaintiff, was liable to the plaintiff for the value, irrespective of the prices fetched at the auction, of the goods delivered to him.

The above judgment of Lord LOUGHBOROUGH is again cited in an elaborate judgment of WILLIAMS, J., in Wood v. Baxter (1883), 49 L. T. 45, where the question arose out of a sale by auction of standing corn with the straw. The plaintiff (the purchaser) had paid the price to the defendant (the auctioneer), but was unable to carry off the straw, owing to a claim by the landlord under the conditions of the tenancy

Williams v. Millington. Notes.

of the farm. WILLIAMS, J., upheld the judgment of the County Court Judge, non-suiting the plaintiff. The learned judge considered that the contract on the auctioneer's part was to give to the purchaser all proper authority to enter upon the farm and to cut and carry away the straw, short only of this, that it did not involve an actual warranty of the validity of the title of the principal to sell. But the plaintiff had the authority of his principal (the tenant) to cut and carry away the corn, and had actually cut and harvested it; and the difficulty arose from the claim of a third party that the straw should only be carried away upon a condition which the tenant was unable to fulfil.

In Barker v. Furlong (23 March, 1891), 1891, 2 Ch. 172, 60 L. J. Ch. 368, furniture which had been assigned to trustees under a marriage settlement, was sent by the person having the immediate possession to an auctioneer for sale on his own premises. The auctioneer sold part of the furniture, delivered it to the purchasers, and paid over the net proceeds to his principal. The plaintiffs, the trustees under the settlement, brought the action, claiming (inter alia) that the auctioneer was liable to refund the money to them. ROMER, J., held the auctioneer liable accordingly. He considered the criterion of conversion to be whether the defendant had dealt with the goods with the view of passing the property to the purchasers, or whether he merely settled the price or otherwise acted as a mere intermediary between the owner and the purchasers.

The

In Consolidated Company v. Curtis (1 March, 1892), 1892, 1 Q. B. 495, 61 L. J. Q. B. 325, the grantor of a bill of sale of furniture instructed an auctioneer to sell the furniture at a house in the grantor's occupation; and it was sold accordingly. The auctioneer, who was ignorant of the bill of sale, delivered the furniture to the purchasers in the ordinary course. An action for conversion of the goods was brought by the grantee under the bill of sale against the auctioneer. plaintiff was held entitled to recover. COLLINS, J., in a considered judgment, in order to show that the auctioneer is more than a mere broker or intermediary, cited at length the judgment of Lord LOUGHBOROUGH in the principal case. He considered a number of cases 1 bearing on the question of what amounts to a conversion; and concluded with the opinion that the defendant in this case had transferred as far as in him lay the dominion over and property in the goods to the purchasers in order that they might dispose of them as their own; and that the judgment must therefore be for the plaintiffs.

1 Fowler v. Hollins (L. R. 7 H. L. 757, No. 2 of " Agency" R. C. Vol. 2, 410); Cochrane v. Rymill (40 L. T. 744, cited R. C. Vol. 2, 432); National Bank v. Ry mill (44 L. T 767, cited R. C. Vol. 2, 433); Turner v. Hockey (1887), 56 L. J. Q. B.

301 (questioned as well by COLLINS, J., in the case here abstracted, as by ROMER, J., in Barker v. Furlong); and the above cited case of Barker v. Furlong (23 Mar. 1891), 1891, 2 Ch. 172, 60 L. J. Ch. 368.

Williams v. Millington. Notes.

AMERICAN NOTES.

An auctioneer who does not disclose the name of his principal when he sells will be considered as the vendor himself. Thomas v. Kerr, 3 Bush (Kentucky), 619; 96 Am. Dec. 262.

"At this day the law may be considered as settled that a vendor or purchaser dealing in his own name, without disclosing the name of his principal, is personally bound by his contract; and it makes no difference that he is known to the other party to be an auctioneer or broker, who is usually employed in selling property as the agent for others." Mills v. Hunt, 20 Wendell (New York), 433.

"The mere fact that defendants were acting as auctioneers is not of itself notice that they were not selling their own goods, and they must be deemed to have been vendors, and responsible as such for title, unless they disclosed at the time the name of the principal." Schell v. Stephens, 50 Missouri, 379.

But an auctioneer selling mortgaged goods for the mortgagor is not liable to the mortgagee for conversion if he acts in ignorance of the mortgage, although the mortgagor's act was fraudulent. Frizzell v. Rundle & Co., 88 Tennessee, 396; 17 Am. St. Rep. 908. Contra, Robinson v. Bird, 158 Mass. 357; 35 Am. St. Rep. 495.

The doctrine of the principal case is approved in Mechem on Agency, § 898, citing Thompson v. Kelly, 101 Massachusetts, 291; 3 Am. Rep. 353; Beller v. Block, 19 Arkansas, 566, and several of the cases above cited. In Thompson v. Kelly, supra, the Court say: "This doctrine stands upon the right of the auctioneer to receive and his responsibility to his principal for, the price of the property sold, and his lien thereon for his commissions; which give him a special property in the goods intrusted to him for sale, and an interest in the proceeds." In that case this doctrine was applied in the instance of a sale of lands where a deposit was required to be paid into the auctioneer's hands at the time of the sale.

"It is well settled that an auctioneer can bring a suit in his own name for goods sold and delivered by him, because he has the possession of the goods and a lien upon them for his charges." Flanigan v. Crull, 53 Illinois, 352.

This principle is also sustained in an action by the auctioneer against the buyer, for his fees, in Johnson & Miller v. Buck, 35 New Jersey Law, 338, where the Court said: "This action though prosecuted in the plaintiffs' names is really an action to recover part of the purchase money of the sale."

"An auctioneer has such a special property or interest in the subject-matter of the sale that he may sue in his own name, unless the principal or real owner elect to bring the action in his name (Chitty on Contr., 185). And it is not necessary to prove that he has a special property or interest; for that flows as a matter of course from his position as an auctioneer." Minturn v. Main, 7 New York, 220, 224.

The auctioneer cannot plead title in himself when sued for the proceeds of the sale; Osgood v. Nichols, 5 Gray (Mass.), 420; and the bailee cannot plead the title of a third person except by his authority. Dodge v. Meyer, 61 California, 405.

NOTE. The cases collected under this title are those which primarily concern Bankers, and would presumably be looked for at once under this head. There are many other cases concerning Bankers, which will be found under other headings, such as "Bills of Exchange," "Negotiable Instrument." The cases relating to appropriation of payments will be found under the head “Appropriation." And as to the effect of an assignment of an equity of redemption, putting an end to the right of a banker holding security to charge further advances, see "Assignment," and note there.

A BANKER has a general lien (to be judicially noticed) upon all bills of exchange sent in by the customer with a general authority to realize them and place the proceeds to the customer's credit.

But the lien does not extend to securities deposited with the banker for a special purpose, as where Exchequer Bills are placed in the banker's hands to get interest on them and to get them exchanged for new bills.

No. 1. Davis v. Bowsher, 5 T. R. 488, 489.

[488]

Davis v. Bowsher.

5 T. R. 488-492 (s. c. 2 R. R. 650-654).

This was an action of assumpsit by the plaintiffs as indorsees of a bill of exchange for £635 10s. against the defendant as drawer. The defendant drew the bill in question on one Ames, payable to Cook, from whom he received no consideration for it. Cook was a trader at Bristol, and kept an account with the plaintiffs, who were bankers in the same place. The course of dealing between them was this: Cook lodged bills payable at future days with the plaintiffs from time to time, and drew upon them for any money he wanted in advance; and the plaintiffs charged no interest on these advances, but used to select out of the bills in their hands such as they pleased and were nearest to the sum advanced, and discounted these bills, debiting Cook with the amount of such discount in his account. On the 26th February the balance on Cook's account with the plaintiffs was £103 in his favour. On the 27th he directed his clerk to pay in to the plaintiffs other bills to the amount of about £3000, which was done; and he applied for another advance, which the plaintiffs at first refused, but they afterwards consented to let him have about £1400, and actually entered the discount on such of the bills as they selected, amongst which the bill in question was not one. And on the plaintiffs' refusing to make Cook any further advance, he demanded this and the other bills which had not been discounted, none of which were then due; but the plaintiffs refused to deliver any of them up, alleging their right to detain them all, in case any of the discounted bills should prove bad. Those discounted bills had longer to run than

the bill in question. At this time none of the discounted [* 489] bills had been dishonoured; though some of them, * beyond the amount of the present bill, afterwards were so; and at the time of the demand and refusal the sums which the plaintiffs had advanced to Cook were considerably more than covered by the amount of the discounted bills in their hands, in the event of their proving to be good bills. Before this action was brought Cook became a bankrupt, and the plaintiffs proved their debt under his commission for the balance of their account, and in the affidavit, usual upon such occasions, they swore that they had no security for their debt, except certain bills which they specified, and which